[Cite as State v. Miller,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, : CASE NO. CA2016-08-057 Plaintiff-Appellee, : OPINION : 5/15/2017 - vs - :

TODD E. MILLER, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2013 CR 0749

D. Vincent Faris, Clermont County Prosecuting Attorney, Katherine Terpstra, 76 South Riverside Drive, Batavia, Ohio 45103, for plaintiff-appellee

Todd E. Miller, #A709617, Chillicothe Correctional Institution, 15802 State Route 104, North Chillicothe, Ohio 45601, pro se

S. POWELL, J.

{¶ 1} Defendant-appellant, Todd E. Miller, appeals from the decision of the Clermont

County Court of Common Pleas denying his most recent pro se post-sentence motion to

withdraw his guilty plea. For the reasons outlined below, we affirm.

{¶ 2} On January 30, 2014, the Clermont County Grand Jury returned a four-count

indictment charging Miller with, among other things, illegal manufacture of drugs in violation Clermont CA2016-08-057

of R.C. 2925.04(A), a first-degree felony in accordance with R.C. 2925.04(C)(3)(b).

According to the bill of particulars, the charge arose after the Clermont County Narcotics Unit

executed a search warrant at a residence located at 807 Greenwood Lane, Clermont County,

Ohio, where they discovered Miller engaged in the manufacturing of methamphetamine

within 1000 feet of a school zone. At the time the search warrant was executed, it is

undisputed that 280 children were present at that nearby school.

{¶ 3} On February 7, 2014, Miller, represented by counsel, filed a suggestion of

incompetence requesting the trial court to order a clinical examination of Miller to determine

his competence to stand trial. Several days later, on February 11, 2014, Miller, again through

counsel, filed a motion requesting the trial court order a psychiatric evaluation of Miller to

determine his then present mental condition. The following day, on February 12, 2014, the

trial court granted Miller's motion ordering a psychiatric examination of Miller's present mental

condition. The trial court further ordered the examiner who conducted the psychiatric

examination to provide a written report providing his or her opinion as to whether Miller was

competent to stand trial and, if not, whether Miller could be returned to competency within

one year.

{¶ 4} On February 28, 2014, the trial court held a hearing on the issue of Miller's

competency to stand trial. At this hearing, the parties stipulated to the contents and the

admissibility of a report submitted by Dr. Emily Davis, Psy.D. a doctor with Summit

Behavioral Healthcare ("SBH"), that Miller was, at that time, incompetent to stand trial. As a

result, based on the stipulation of the parties, the trial court found Miller was not competent to

stand trial. The trial court, however, determined that there was a substantial probability that

Miller would become competent to stand trial within one year if he was provided with an

appropriate course of treatment. Therefore, the trial court ordered Miller to undergo

treatment at SBH for a period not to exceed six months.

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{¶ 5} On April 17, 2014, the trial court received a letter from SBH requesting

authorization to involuntarily medicate Miller in an effort to restore his competency to stand

trial. Approximately one week later, on April 23, 2014, the trial court held a hearing on the

matter. At this hearing, the parties stipulated to a report from Dr. Elizabeth Gilday, M.D., also

a doctor with SBH, who noted Miller's need to be medicated in order to regain his

competency to stand trial. As noted by the trial court in its entry, at that hearing, Miller

stipulated to the following:

[T]he defendant stipulated he is facing serious criminal charges, that the medications would substantially likely render the defendant competent to stand trial, that the treatment is medically appropriate, and that the medication is substantially unlikely to have side effects that would interfere significantly with the defendant's ability to assist counsel in his own defense, and thus undermine the fairness of the trial. Further, in taking account of less intrusive alternatives, the defendant stipulated that the administration of the medication is necessary to further important governmental trial-related interests.

{¶ 6} Due to Miller's stipulations, which are supported by the record, as well as Dr.

Gilday's report and testimony about the medications needed to restore Miller's competency,

the trial court granted SBH's request to involuntarily medicate Miller with the specific

medications provided in Dr. Gilday's report should Miller later refuse to the administration of

those named medications.

{¶ 7} On July 3, 2014, the trial court held another hearing on the issue of Miller's

competency to stand trial. At this hearing, the parties stipulated to the contents and

admissibility of a report by Dr. Charles Lee, Ed.D, yet another doctor with SBH, that Miller's

competency to stand trial had successfully been restored. As a result, the trial court found

Miller was now competent to stand trial. The trial court then ordered Miller returned to SBH

for the continued administration of his medications, or other treatment, in order to maintain

Miller's competency until trial.

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{¶ 8} On August 25, 2014, instead of going to trial, Miller entered into a plea

agreement and pled guilty to illegal manufacture of drugs in exchange for the remaining

charges being dismissed. After engaging Miller in a full Crim.R. 11 plea colloquy, the trial

court accepted Miller's guilty plea upon finding he entered the plea knowingly, intelligently,

and voluntarily. Thereafter, on October 1, 2014, the trial court sentenced Miller to serve a

mandatory term of seven years in prison and ordered him to pay court costs. The trial court

also suspended Miller's driver's license for a period of three years and notified him that he

would be subject to a mandatory term of five years of postrelease control following his

release from prison. Miller did not file an appeal from his conviction or sentence.

{¶ 9} Nearly a year later, on September 8, 2015, Miller filed a pro se motion to

dismiss all charges. In support of this claim, Miller cited extensively to the Uniform

Commercial Code, the Congressional Act of 1871, and the Buck Act of 1940, among others,

alleging the trial court had no jurisdiction over him because he was a sovereign citizen who

was not subject to prosecution by the state of Ohio. Construing Miller's motion as a petition

for postconviction relief, the trial court denied Miller's petition on November 4, 2015 upon

finding Miller had presented "no cogent, clear, logical, or convincing basis" to grant the

requested relief. The trial court further stated:

The majority of the defendant's motion seems to be premised on the fact that he is not a citizen of the United States or the State of Ohio; however, he fails to present evidence of this fact. If he wishes to revoke his citizenship, he is certainly free to do so, but at the time he committed the offense in question, at the time he entered a plea of guilty, and at the time he was sentenced, there was no issue raised in terms of his citizenship. Further, the defendant seems to rely heavily on the UCC in support of his argument; however, the UCC is civil in nature, and has no bearing on criminal law.

Miller did not appeal from the trial court's decision.

{¶ 10} Several weeks after the trial court issued this decision, on December 22, 2015,

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Miller filed a pro se post-sentence motion to withdraw his guilty plea alleging he received

ineffective assistance of counsel. In support of this motion, Miller alleged his trial counsel

was ineffective for not filing a motion to suppress, not investigating the plea agreement

further, and by "manipulating" him to accept the plea deal knowing he was "not in his correct

frame of mind" since he was "under the influence of a psychotropic drug." Miller further

alleged that he should be permitted to withdraw his plea since he was not competent to stand

trial at the time he entered his guilty plea. According to Miller, this rendered his guilty plea

void in that it was not knowingly, intelligently, and voluntarily entered. The trial court denied

Miller's motion on February 29, 2016 upon finding Miller's claims were not supported by the

record and were otherwise barred by the doctrine of res judicata. Miller did not appeal from

the trial court's decision.

{¶ 11} On May 18, 2016, Miller filed another pro se post-sentence motion to withdraw

his guilty plea alleging the same basic claims regarding ineffective assistance of counsel and

of his competency to stand trial. According to Miller, he filed this new motion to allow the trial

court to again reconsider its earlier decision finding he was competent to stand trial prior to

him entering his guilty plea and to reevaluate whether he received ineffective assistance of

counsel. The trial court denied Miller's motion on July 22, 2016 after again finding Miller's

claims were not supported by the record and were otherwise barred by the doctrine of res

judicata.

{¶ 12} Miller now appeals from the trial court's decision denying his most recent pro se

post-sentence motion to withdraw his guilty plea, raising the following single assignment of

error for review.

{¶ 13} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

DENIED DEFENDANT-APPELLANT'S MOTION TO WITHDRAW PLEA PURSUANT TO

CRIMINAL RULE 32.1 WITHOUT A HEARING AND ON THE BASIS OF RES JUDICATA. -5- Clermont CA2016-08-057

{¶ 14} In his single assignment of error, Miller argues the trial court erred by denying

his most recent pro se post-sentence motion to withdraw his guilty plea. We disagree.

Standard of Review

{¶ 15} Pursuant to Crim.R. 32.1, "[a] motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct manifest injustice the court

after sentence may set aside the judgment of conviction and permit the defendant to

withdraw his or her plea." A defendant who seeks to withdraw a guilty plea after the

imposition of a sentence, such as the case here, has the burden of establishing the existence

of a manifest injustice. State v. Williams, 12th Dist. Clermont No. CA2012-08-060, 2013-

Ohio-1387, ¶ 11, citing State v. Smith,

(1977), paragraph one of the

syllabus. A manifest injustice is defined as "a fundamental flaw in the proceedings that

results in a miscarriage of justice or is inconsistent with the demands of due process." State

v. Hobbs, 12th Dist. Warren No. CA2012-11-117,

. "The requirement of

demonstrating a manifest injustice is designed to discourage a defendant from pleading guilty

to test the weight of the potential reprisal, and later attempting to withdraw the plea if the

sentence was unexpectedly severe." Williams at ¶ 13. This sets forth an extremely high

standard that is allowable only in extraordinary cases. State v. Murray, 12th Dist. Brown No.

CA2015-12-029,

.

{¶ 16} A trial court is not required to hold an evidentiary hearing on every post-

sentence motion to withdraw a guilty plea. State v. Degaro, 12th Dist. Butler No. CA2008-09-

227,

, ¶ 13. However, an evidentiary hearing on a post-sentence motion to

withdraw a guilty plea is required if the facts alleged by the defendant and accepted as true

would require the court to permit that plea to be withdrawn. State v. Mays,

(8th Dist. 2008). Therefore, "[a] defendant must establish a reasonable likelihood

that a withdrawal of his plea is necessary to correct a manifest injustice before a court must -6- Clermont CA2016-08-057

hold an evidentiary hearing on his motion." State v. Williams, 12th Dist. Warren No. CA2009-

03-032,

, ¶ 14.

{¶ 17} We review a trial court's decision on a post-sentence motion to withdraw a

guilty plea for an abuse of discretion. State v. Powell, 12th Dist. Clermont No. CA2009-05-

028,

, ¶ 10. An abuse of discretion is more than an error of law or judgment.

State v. Miller, 12th Dist. Butler No. CA2016-01-007,

. Rather, it

suggests the "trial court's decision was unreasonable, arbitrary or unconscionable." State v.

Perkins, 12th Dist. Clinton No. CA2005-01-002,

. A decision is

unreasonable when it is "unsupported by a sound reasoning process." State v. Abdullah,

10th Dist. Franklin No. 07AP-427,

, citing AAAA Ents., Inc. v. River

Place Community Urban Redevelopment Corp.,

(1990).

The Doctrine of Res Judicata

{¶ 18} The doctrine of res judicata provides that "a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

77proceeding except an appeal from that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by the defendant at the trial, which

resulted in that judgment of conviction, or an appeal from the judgment." State v. Wagers,

12th Dist. Preble No. CA2011-08-007,

, ¶ 10, citing State v. Szefcyk,

(1996). Thus, as this court has stated previously, res judicata applies and "bars

claims raised in a Crim.R. 32.1 post-sentence motion to withdraw a guilty plea that were

raised or could have been raised in a prior proceeding." State v. Rose, 12th Dist. Butler No.

CA2010-03-059,

, ¶ 18. In other words, claims raised in support of a Crim.R.

32.1 post-sentence motion to withdraw a guilty plea that could have been raised on direct

appeal, but were not, are barred by res judicata. State v. Hendrix, 12th Dist. Butler No.

CA2012-05-109,

. -7- Clermont CA2016-08-057

Miller's Claims Barred by Res Judicata

{¶ 19} Initially, Miller claims the trial court erred by denying his most recent pro se

post-sentence motion to withdraw his guilty plea since it was not entered knowingly,

intelligently, and voluntarily due to his life-long mental incompetency, including at the time he

entered his guilty plea. According to Miller, although he was found competent to stand trial

by the trial court, such a finding was improper and "coerced" since he was forced by the trial

court to submit to "physical abuse" through the involuntary administration of medication in an

effort to restore him to competency, a finding Miller also alleges was improper. Miller further

claims the trial court failed to comply with the requirements of Crim.R. 11 prior to entering his

guilty plea, thus rendering his guilty plea void in that it was not knowingly, intelligently, and

voluntarily entered.

{¶ 20} These claims are barred by the doctrine of res judicata as Miller could have,

and should have, raised these issues in a direct appeal. However, not only did Miller not file

a direct appeal in this case, as the record reveals, the trial court already rejected similar

claims regarding the knowing, intelligent, and voluntary nature of his guilty plea in overruling

Miller's previous pro se post-sentence motion to withdraw his guilty plea, a decision Miller

also did not appeal. Therefore, because the doctrine of res judicata now bars these claims,

we find no error in the trial court's decision denying Miller's most recent post-sentence motion

to withdraw his guilty plea. We also find no error in the trial court's decision not to hold a

hearing on these issues. "A reviewing court must give extreme deference to a trial court's

determination that a defendant is competent to knowingly, intelligently, and voluntarily accept

a plea." State v. Grant, 10th Dist. Franklin Nos. 12AP-650 and 12AP-651,

,

¶ 10, citing State v. Doak, 7th Dist. Columbiana Nos.

and

, 2004-Ohio-

1548, ¶ 16. Miller's claims otherwise are without merit.

{¶ 21} Next, Miller claims the trial court erred by denying his most recent pro se post- -8- Clermont CA2016-08-057

sentence motion to withdraw his guilty plea since he received ineffective assistance of

counsel. In support of this claim, Miller alleges his trial counsel was ineffective in that he

failed to take any measures to "safeguard and protect" his interests, but instead hurriedly

convinced him to enter a guilty plea through "coercive measures" and manipulation. These

claims are also barred by the doctrine of res judicata. Just as his claims addressed above,

Miller could have, and should have, raised these issues in a direct appeal. Similarly, the trial

court already rejected virtually identical claims in overruling Miller's previous post-sentence

motion to withdraw his guilty plea. Again, Miller did not appeal from that decision. Therefore,

because the doctrine of res judicata also bars Miller's claim alleging ineffective assistance of

counsel, we find no error in the trial court's decision denying Miller's most recent pro se post-

sentence motion to withdraw his guilty plea as it relates to these issues, nor do we find any

error in the trial court's decision not to hold a hearing on these issues. Miller's claims

otherwise are likewise without merit.

Miller's Ineffective Assistance Claims Lack Merit

{¶ 22} Miller has made a variety of additional claims regarding his trial counsel's

performance, many of which are difficult to decipher. However, although Miller appears pro

se in this matter, we note that it is not this court's duty to "root out" arguments that can

support an assignment of error. State v. Sturgill, 12th Dist. No. CA2014-09-066, 2015-Ohio-

1933, ¶ 5. Similarly, this court will not "conjure up questions never squarely asked or

construct full-blown claims from convoluted reasoning." State v. Fields, 12th Dist. Brown No.

CA2009-05-018,

, ¶ 7. It is axiomatic that pro se litigants, like Miller, are "not

to be accorded greater rights and are bound to accept the results of their own mistakes and

errors, including those related to correct legal procedures." State v. Kline, 12th Dist. Warren

No. CA2004-10-125,

.

{¶ 23} Nevertheless, we find it necessary to state, as this court has done previously, -9- Clermont CA2016-08-057

that "'an attorney's advice to take a plea deal is not ineffective assistance of counsel.'" State

v. Robinson, 12th Dist. Butler No. CA2013-05-085,

, quoting State v.

Shugart, 7th Dist. Mahoning No. 08 MA 238,

, ¶ 37. Moreover, as part of his

signed guilty plea form, Miller specifically acknowledged that he had been informed of the

maximum penalty he faced, as well as the fact that his trial counsel had advised him of the

impact of his guilty plea, that he understood the ramifications of making such a plea, and that

he was satisfied with his trial counsel's advice, counsel, and competence. Miller made the

same specific acknowledgements to the trial court during his plea hearing. Similarly, also at

his plea hearing, Miller explicitly acknowledged that nobody had pressured him or promised

him anything to enter a guilty plea. Therefore, after a thorough review of the record, even

when analyzing the merits of this case, we find no error in the trial court's decision to deny

Miller's most recent pro se post-sentence motion to withdraw his guilty plea based on his trial

counsel's alleged ineffective assistance.

Miller's Claims Raised for the First Time on Appeal are Waived

{¶ 24} Finally, we note that Miller has raised several additional claims that were not

raised as part of his most recent pro se post-sentence motion to withdraw his guilty plea now

before this court. For instance, while Miller now claims he entered a guilty plea based on his

trial counsel's promise to appeal the case, as well as an assurance from his trial counsel that

he would be sentenced to serve only four years at a mental health facility, Miller never raised

these issues before the trial court as part of his motion. It is "well-settled that issues not

raised in the trial court may not be raised for the first time on appeal." State v. Guzman-

Martinez, 12th Dist. Warren No. CA2010-06-059,

, ¶ 9. Therefore, because

Miller failed to raise these issues below, we will not address these claims for the first time on

appeal.

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Conclusion

{¶ 25} In light of the foregoing, we find no error with the trial court's decision denying

Miller's most recent pro se post-sentence motion to withdraw his guilty plea. As the trial court

correctly determined, all of Miller's claims are either without merit and/or barred by the

doctrine of res judicata. Therefore, because we find no error with the trial court's decision to

denying Miller's most recent post-sentence motion to withdraw his guilty plea, Miller's single

assignment of error is overruled.

{¶ 26} Judgment affirmed.

HENDRICKSON, P.J., and PIPER, J., concur.

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